Andrew Lee Dyer v. U.S. Attorney General , 190 F. App'x 822 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2006
No. 05-13830 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A36-545-160
ANDREW LEE DYER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 20, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner is a native and citizen of Jamaica. As the result of his convictions
in the Polk County, Florida Circuit Court on February 18, 1991, May 24, 1991, and
July 1, 1994, the Immigration and Naturalization Service (“INS”) commenced
removal proceedings against petitioner, alleging that he had been convicted of two
crimes of moral turpitude (on February 18 and May 24, 1991) and an aggravated
felony (on July 1, 1994). On December 15, 1998, an Immigration Judge (“IJ”)
found that no relief from removal was available to petitioner and ordered him
removed to Jamaica. On May 6, 1999, the Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision, and on May 12, 1999, petitioner was removed to
Jamaica.
In June 2003, petitioner reentered the United States illegally. In February
2004, he was convicted the United States District Court for the Middle District of
Florida of violating 8 U.S.C. § 1326(a) (reentry of deported alien previously
convicted of an aggravated felony) and sentenced to prison for 57 months. On
December 16, 2004, he petitioned the United States District Court for the Middle
District of Pennsylvania (the district in which he was in federal custody), seeking
relief from his conviction and the BIA’s May 6, 1999 decision affirming the IJ’s
removal order of December 15, 1998. The district court dismissed the petition to
the extent that it challenged his § 1326(a) conviction and transferred the part of the
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petition seeking review of the removal order to this court. See REAL ID Act of
2005 (“RIDA”), Pub.L.No. 109-13, § 106(c), 119 Stat. 231, 311.
In his habeas petition, petitioner contends
(1) that IJ failed to inform him of “his right to eligible relief” from removal,
in violation of his right to due process; specifically, the IJ failed to inform him that
he was eligible for discretionary relief from removal pursuant to Immigration and
Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed), because his plea
of guilty to one of his three Polk County offenses occurred before § 212(c) was
repealed;
(2) that his counsel was ineffective because he failed to present evidence of
petitioner’s mental illness at the removal hearing and failed to “offer plausible
grounds of relief which might have been available”;
(3) that he established a prima facie case for asylum and withholding of
removal under the INA, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”); and
(4) that the BIA’s denial of discretionary relief was a violation of his rights
under the Rehabilitation Act, 29 U.S.C. § 794, and the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq.
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After receiving the instant petition, we instructed the parties to address three
jurisdictional questions;1
(1) Whether [INA] § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), limits
this court’s jurisdiction to review the petition. See Del Pilar v.
Attorney General, 326 F.3d 1154, 1156 (11th Cir. 2003).
(2) If INA § 242(a)(2)(C) applies, whether the specific
constitutional challenges or questions of law, if any, raised by
petitioner, are reviewable. See 8 U.S.C. § 1252(a)(2)(D);
Brooks v. Ashcroft, 283 F.3d 1268, 1273-75 (11th Cir. 2002).
(3) If petitioner seeks judicial review of the denial of discretionary
relief, does INA § 242(a)(2)(B) , 8 U.S.C. § 1252(a)(2)(B),
preclude this court’s jurisdiction if the BIA did not exercise any
discretion in denying the requested relief?
As amended by the Illegal Immigration Reform and Immigrant
Responsibility Act, INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), precludes us
from exercising “jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed” an aggravated felony, as covered
in INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Our review of a criminal
alien’s petition is therefore restricted to “whether he is (1) an alien (2) who is
removable (3) based on a conviction for an aggravated felony.” Del Pilar v.
Attorney General, 326 F.3d 1154, 1157 (11th Cir. 2003) (quotation and alteration
1
In its brief, the Government raises two additional jurisdictional issues: (1) whether the
petition was timely, and (2) whether we are barred from exercising subject-matter jurisdiction to
review the petition pursuant to 8 U.S.C. § 1231. The petition was timely pursuant to RIDA
§ 106(c), which provides that the customary 30-day time period for filing a petition for review
under INA § 242(b)(1), 8 U.S.C. § 1252(b)(1), does not apply to transferred § 2241 petitions.
Because there is no evidence in the record to show that the December 15, 1998 order of removal
was reinstated, we need not address the second jurisdictional issue.
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omitted). Aggravated felonies include “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least one
year.” 8 U.S.C. § 1101(a)(43)(G).2
Despite the jurisdictional limitations of INA § 242(a)(2)(C), “[n]othing in
subparagraph (B) or (C), or in any other provision of this Act (other than this
section) which limits or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals.” INA § 242(a)(2)(C), 8 U.S.C.
§ 1252(a)(2)(D). Similarly, INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) “does
not preclude review of non-discretionary legal decisions that pertain to statutory
eligibility for discretionary relief.” Gonzalez-Oropeza v. Att’y Gen., 321 F.3d
1331, 1332 (11th Cir. 2003).
The record indicates that the BIA exercised no discretion in denying
petitioner’s claims for relief from removal. The BIA determined that petitioner was
ineligible for statutory relief from removal due to his status as an aggravated felon.
Because he was removed following a conviction for an aggravated felony, we lack
jurisdiction to review his petition and dismiss it. Although we retain limited
jurisdiction to review any legal or constitutional questions raised in his petition, the
2
Petitioner’s May 24, 1991 conviction was for burglary and possession of burglary
tools. He was sentenced to prison for a period of 36 to 42 months. His July 1, 1994 conviction
was for robbery and criminal mischief, for which he was sentenced to prison for nine years.
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legal and constitutional claims in his petition are without merit. We accordingly
deny the petition as to these claims.
PETITION DISMISSED, in part, DENIED in part.
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